Let me explain something: there is a major difference between persuasion and binding precedent in law. For the United States Supreme Court can be bound only by its own decisions (and those can be overruled) and every other legal decision in any other court (lower federal, state supreme court or non-American) is only persuasive."In International and Foreign Law Sources: Siren Song for U.S. Judges?, University of California, Hastings College of the Law Associate Professor Chimène I. Keitner, addresses the growing debate over the use of foreign and international law sources by U.S. judges engaged in constitutional adjudication."
Frankly, we forget much of our history. English law pervaded a very long time in this county. We had judges looking to England for interpretations of the law. Now, some of that was not constitutional law but I am sure some was. I think the key difference lay in those judges looked at English precedence and said this does not apply here.
Instead of howling at the use of foreign precedents, ask why is that such and such reasoning is not good enough for Americans?
Consider Anarchy in the UK from Lex Ferenda:
In Ireland, the decision of a Divisional High Court on proceedings brought by the Mahon Tribunal against the editor of and a journalist with the Irish Times. The paper, unsurprisingly, is not cooperating with an investigation into documents leaked to it.
The decision of the High Court (PDF here) is causing quite some concern to the Irish media and to commentators. See, e.g. Roy Greenslade, Blurred Keys. In short, the High Court ruled that the journalists were required to disclose information to the Tribunal, finding that the expression/media rights were outweighed by the need to preserve confidence in the tribunal. So far, so Irish.
It might give an insight into what we might get if some of the anti-media types here get their way, but can anyone believe that the United States Supreme Court would find this decision even persuasive?
Comments for this post
